STATE OF OHIO v. ANTHONY WALKER
No. 96486
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
February 23, 2012
[Cite as State v. Walker, 2012-Ohio-697.]
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-268354
BEFORE: E. Gallagher, J., Cooney, P.J., and Keough, J.
RELEASED AND JOURNALIZED: February 23, 2012
David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: T. Allan Regas
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Anthony Walker, appeals from a nunc pro tunc journal entry issued by the Cuyahoga County Court of Common Pleas on February 11, 2011. Appellant argues that the trial court may not correct a judgment that is void pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, with a nunc pro tunc journal entry. For the following reasons, we overrule appellant‘s sole assignment of error and affirm the judgment of the trial court.
{¶2} On June 19, 1991, appellant was indicted and charged with two counts of aggravated murder with specifications for mass murder and felony murder. Appellant was also charged with aggravated burglary, aggravated robbery, attempted murder, and kidnapping. Each of the counts contained a three-year firearm specification. Appellant pled not guilty to the charges.
{¶3} The case proceeded to a jury trial and, on November 2, 1991, appellant was found guilty of all counts. On November 21, 1991, the trial court accepted the jury‘s recommendation and imposed a death sentence for appellant‘s convictions of aggravated murder and imposed sentences on all other counts.
{¶4} This court reversed appellant‘s convictions and remanded the case for a new trial due to ineffective assistance of counsel in State v. Walker, 8th Dist. No. 62862, 1993 WL 437651 (Oct. 28, 1993). (“Walker I.“)
{¶6} On June 25, 1998, appellant again appealed his conviction to this court. Appellant argued that the trial court erred:
in refusing to grant a mistrial for jury misconduct; in giving improper instructions to the jury; in failing to journalize defendant‘s conviction for two years; and for allowing irrelevant and prejudicial evidence. Ineffective assistance of counsel is also asserted for failure to object to allegedly incomplete jury instructions. State v. Walker, 8th Dist. No. 74773, 1999 WL 1000686, *1 (Nov. 4, 1999). (“Walker II.“)
On November 15, 1999, this court affirmed appellant‘s convictions and sentence.
{¶7} On June 23, 2010, appellant filed a motion for resentencing and the issuance of a revised judgment entry of his original case pursuant to
{¶8} Appellant appeals, raising the following sole assignment of error:
{¶9} “The trial court may not correct a judgment void pursuant to State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330 with a nunc pro tunc entry.”
{¶10} We find no merit to this assigned error.
{¶11} Appellant claims that his sentencing entry does not conform to
A judgment of conviction is a final appealable order under
R.C. 2505.02 when it sets forth (1) the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based; (2) the sentence; (3) the signature of the judge; and (4) entry on the journal by the clerk of court. Simply stated, a defendant is entitled to appeal an order that sets forth the manner of conviction and the sentence. Baker, supra at ¶ 18.
{¶12} The Ohio Supreme Court revisited its Baker holding in State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, to clarify the necessary components of the manner of conviction and a trial court‘s ability to record nunc pro tunc journal entries to correct clerical omissions.
{¶13} The court in Lester held that the “the finality of a judgment entry of conviction is not affected by a trial court‘s failure to include a provision that indicates
{¶14} Lester clarified that “a nunc pro tunc judgment entry issued for the sole purpose of complying with
{¶15} The facts in this case are substantially similar to the fact pattern presented in Lester. As in Lester, appellant was present in open court and heard the jury verdict, has previously appealed his sentence in which his assignments of error recognized that the jury found him guilty, and has had his convictions and sentence affirmed by this court. See State v. Walker, 8th Dist. No. 74773, 1999 WL 1000686, at *13 (Nov. 4, 1999). Compare Lester, supra at ¶ 2-6; State v. Bonnell, 8th Dist. No. 96368, 2011-Ohio-5837, 2011 WL 5506071, at ¶ 17 (“In this case, all parties were aware that Bonnell was convicted by a jury on the aggravated burglary charge for which he was sentenced, as evidenced by his appeal of that charge.“). No contradiction exists in the record to show appellant did not have knowledge that he was convicted by a jury. Moreover, in the journal entry from May 26, 1998, nunc pro tunc for March 13, 1996, the court reports that appellant was in court with counsel and was advised of his right to appeal from his convictions and his right to proceed to a mitigation hearing before a jury for the purposes of sentencing. Appellant waived his right to a sentencing hearing and his right to appeal the sentence in order to enter into a sentencing agreement.
{¶16} Even though the trial court‘s journal entry from May 26, 1998, nunc pro tunc for March 13, 1996, lacked the fact that a jury found appellant guilty, the judgment of conviction is a final order subject to appeal under
“(1) the fact of the conviction, (2) the sentence, (3) the judge‘s signature, and (4) the time stamp indicating the entry upon the journal by the clerk.” Lester, at ¶ 14; see also Bonnell, at ¶ 6, 14 (“Like the defendant in Lester, Bonnell had notice of his conviction, which was evident throughout the record, and was apparent to the defendant who had exhausted the appellate process.“)
{¶17} A clerical omission does not render the judgment a nullity. Bonnell, at ¶ 13. The Ohio Supreme Court has held that “[c]onsistent with the treatment of
{¶18} This court finds that the omission of appellant‘s manner of conviction was a clerical error and non-substantive to appellant‘s final appealable order. Therefore, the trial court may enter a nunc pro tunc judgment to correct the omission from the March 13, 1996 judgment entry.
{¶19} Appellant‘s sole assignment of error is overruled.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, J., CONCURS;
COLLEEN CONWAY COONEY, P.J., DISSENTING
WITH SEPARATE OPINION
COLLEEN CONWAY COONEY, P.J., DISSENTING:
{¶21} I respectfully dissent because I would dismiss the instant appeal pursuant to State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph two of the syllabus, which states:
2. A nunc pro tunc judgment entry issued for the sole purpose of complying with
Crim.R. 32(C) to correct a clerical omission in a final judgment entry is not a new final order from which a new appeal may be taken.
{¶23} I would dismiss this attempt to file another appeal and find no reasonable grounds existed to file the appeal or to pursue it once Lester was decided.